YATES vs SAFEWAY, INC., et al.

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by Safeway, Inc. (Defendant) CRS# 278862196895 in Department 517

Tentative Ruling - 07/22/2026 Keith Fong

The Motion for Summary Judgment filed by Safeway, Inc. on 05/06/2026 is Denied.

Defendant Safeway, Inc.’s Motion for Summary Judgment is DENIED.

BACKGROUND

On January 18, 2024, at approximately 5:45 P.M., Plaintiff Nancy Yates (“Plaintiff”) walked from her home on Rose Street to the Safeway store on Shattuck Street owned and operated by Defendant Safeway, Inc. (“Safeway”). (Safeway Undisputed Material Facts (“SUMF”) 1, 5; Plaintiff’s Undisputed Material Facts (“PUMF”) 19, 22.) On her way home, at about 6:00 P.M., Plaintiff tripped and fell over a raised piece of triangle concrete at the edge of the public sidewalk on Henry Street next to a retaining wall, adjacent to the Safeway store. (SUMF 6; PUMF 19.)

Plaintiff testified that the weather was damp, cold, overcast, and it may have been drizzling at the time of her fall. (Safeway Exh. 4 (“Pltf.’s Depo”) p. 46.) She further testified that it was dark. (Id.) Plaintiff testified that she “fell face down on the pavement” (Id. p. 59.) Plaintiff further testified that the fall caused pain in her head, hands, knees, ribs, and back. (Id. pp. 63-64.)

Plaintiff initiated this action on May 29, 2024. The operative Second Amended Complaint, filed on October 22, 2024, alleges general negligence and premises liability against Safeway and the City of Berkeley (“City”).

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) “That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon.” (Id.) Further, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id.)

A defendant moving for summary judgment may demonstrate that the plaintiff’s cause of action 24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by Safeway, Inc. (Defendant) CRS# 278862196895 in Department 517 has no merit by showing that one or more elements of the cause of action cannot be established. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 564.)

General Negligence and Premises Liability

To succeed on a claim for negligence, Plaintiffs must present evidence of (1) a legal duty to use due care, (2) breach of that legal duty, and (3) the breach as the proximate and legal cause of the resulting injury. (Ladd v. County of San Mateo (1999) 12 Cal.4th 913, 917.) The elements of a negligence cause of action are the same as those for a premises liability claim. (Jones v. Awad (2019) 39 Cal.App.4th 1200, 1207.)

REQUEST FOR JUDICIAL NOTICE

Safeway’s unopposed Request for Judicial Notice is GRANTED IN PART. Notice is taken of the pleadings in this action, and not the truth of the factual matters asserted therein. (People v. Franklin (2016) 63 Cal. 4th 261, 280.)

DISCUSSION

Safeway contends that it is entitled to summary judgment as to the claims against it as there is no triable issue of material fact that the alleged sidewalk condition is a trivial defect as a matter of law, such that it does not give rise to Safeway’s liability.

An essential element of recovery for premises liability is proof of a dangerous condition. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.) Where there is conflicting evidence as to whether a defect is trivial, summary judgment is not appropriate. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 29-30.) The trivial defect doctrine is not an affirmative defense, but an aspect of duty that a plaintiff must plead and prove. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

A property owner is not liable for damages caused by a minor, trivial, or insignificant defect at his property. (Id.) However, whether a defect is dangerous as a matter of law does not rest solely alone on the size of the defect, but also whether there are other conditions surrounding the defect, such as debris, grease, or water, concealing the defect, whether the accident occurred at night or in an unlit area, or if there was some other condition that obstructed a pedestrian’s view of the defect. (Id.)

Safeway submits the sworn declaration of its expert, Brad Wong, a mechanical engineer. Wong states that pursuant to his inspection of the incident location on April 14, 2026, the “highest elevation point of the triangular cement piece is one inch from the retaining wall measuring 1 1/8 inches.” (Wong Decl. ¶ 7.)

The “most important” factor in determining what constitutes a dangerous condition is the defect’s size. (Stack v. City of Livermore (2023) 91 Cal.App.5th 102, 111.) Recent authority

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by Safeway, Inc. (Defendant) CRS# 278862196895 in Department 517 holds that once the defect begins to exceed one inch, courts are reluctant to find the defect trivial as a matter of law. (Id. at pp. 111-112.)

Moreover, the record before the Court establishes that other factors may impact a finding as to whether the defect was trivial. Plaintiff testified at her deposition that she fell when it was dark outside; the weather was damp and may have been drizzling; the nearby light in the parking lot was out; and there was no color contrast or warning that marked the uplift of the concrete lip. (Pltf.’s Depo pp. 46, 75-76.) This combination of factors is sufficient to defeat summary judgment. (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226-230.) Taken in totality, a reasonable trier of fact could find that the uplift, encountered in the dark on wet pavement, without any visible warning, posed a substantial risk to a pedestrian exercising ordinary care. Whether Plaintiff was familiar with the route goes to the issue of comparative fault, not whether the condition was trivial as a matter of law.

Safeway further contends that Plaintiff cannot prove what caused her fall because she could not identify the precise point where her foot met the concrete. However, “[a] slip-and-fall plaintiff need not remember her fall to recover damages provided the evidence gives rise to a reasonable and probable inference that the defendant’s negligence was a substantial contributing factor.” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 217.)

Plaintiff testified at deposition that she tripped on a concrete “lip” or “triangle” with her right foot. (Pltf’s Depo. pp. 59-61.) She testified that she was not sure if she hit the retaining wall. (Id. pp. 62-63.) She stated that she would “do [her] best to mark the exact place” where her foot hit the lip of the concrete. (Id. p. 61.) As such, this presents a credibility question for trial.

Summary judgment on the grounds of trivial defect and causation is DENIED.

CONCLUSION

Defendant Safeway, Inc.’s Motion for Summary Judgment is DENIED.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by Safeway, Inc. (Defendant) CRS# 278862196895 in Department 517 5. Select the Tentative Rulings Tab 6. Select "Click to Contest this Ruling" 7. Enter your Name and Reason for Contesting 8. Select "Proceed"

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